A trustee stopped coming to meetings eighteen months ago. They answer emails occasionally, have not resigned, and will not say whether they intend to continue. The board wants them off the register and has assumed it can vote them off.
It probably cannot. Nothing in charity law gives a board a general power to remove one of its own trustees. The removal powers in the Charities Act 2011 belong to the Charity Commission, exercised by order on its own initiative. What your board has is whatever its governing document gives it, and for a charitable company, one provision of company law.
That distinction decides everything that follows, and it is the point most guidance on this subject gets wrong.
If a departure has become difficult, or you are not sure a removal you have already made was valid, our charity governance support works through it with you.
Start with the departure you actually have
Most trustees leave for reasons nobody disputes. A term of office ends. Someone steps down. Circumstances change, and they can no longer do the role. In a membership charity, they stand for re-election and are not re-elected. Or they die, in which case the trusteeship ends and does not pass to anyone else.
Dismissal is the exception. It arises where a trustee has disengaged from meetings and decisions, has breached the charity’s codes or policies, or where a complaint or issue is damaging the charity. Even then, the trustee often resigns once the conversation is had, and no removal is needed.
That is worth trying first. Relationships around a board deteriorate for reasons that have nothing to do with anyone’s conduct, and removal is not always the answer to a difficult one. Mediation is available and considerably cheaper than a contested departure.
When a trustee resigns
A resignation should be in writing. Your governing document may add requirements – notice periods, or who it must be given to – and those apply.
Before you accept it, check two numbers. Your minimum number of trustees, and your quorum. The Commission’s own advice is to find and appoint a new trustee before the retiring one leaves, and if a resignation would take you below either figure, that is the urgent problem rather than the resignation itself. A board that cannot form a quorum cannot make valid decisions, including the decision to appoint a replacement. Our guide to recruiting trustees when nobody applies covers what to do when the seat proves hard to fill.
There is no resignation form to submit. You update your charity’s details through My Charity Commission Account, and either the trustee or the charity’s administrator can do it. Charitable companies must also tell Companies House.
Do it quickly. A trustee whose name is still on the register months after leaving is publicly associated with decisions they took no part in, which is unfair to them and untidy for you.
Then the practical tail. Arrange a handover if the leaver held anything the charity needs; the Commission account details are the one that catches boards out. Change the bank mandate. If the trustee is named on title deeds to land or property, the legal title has to be updated; there is a set procedure, and you should take advice. Always keep at least two trustees where the charity holds land.
What your governing document lets you do
This is the first place to look and usually the only board route available.
A well-drafted governing document sets out how trustees are appointed, retire and can be removed. Section 206 of the Charities Act 2011 requires a CIO constitution to make provision about the appointment of charity trustees and any conditions of eligibility, and the CIO Regulations add a requirement to set out the circumstances in which a trustee ceases to hold office; and, where the constitution permits members to remove a trustee, the circumstances and the procedure for doing so. Note the conditional. A CIO constitution is not obliged to contain a removal power at all. It is obliged to be clear about what it does contain.
Charitable companies and unincorporated charities vary more widely, and some governing documents say nothing about removal.
Where a procedure exists, follow it exactly. It may entitle the trustee to make representations about their own removal, or set notice requirements, or specify a voting threshold higher than a simple majority. Those are not formalities; a removal carried out in breach of the procedure can be challenged, and you will have spent the goodwill without achieving the outcome.
Charitable companies have a route that does not depend on the articles. Under section 168 of the Companies Act 2006, a company may by ordinary resolution at a meeting remove a director before their period of office expires, notwithstanding anything in any agreement between the company and the director. Special notice is required, which means 28 clear days. The director is entitled to be heard at the meeting, and may make written representations of reasonable length and ask for them to be circulated to members.
Note who exercises that power. The members, at a general meeting, not the board at a board meeting. In a charity where the trustees are also the only members, that is the same people wearing a different hat, and the meeting has to be convened and run as a general meeting for the removal to stand.
Unincorporated charities have a narrower statutory fallback. Section 36 of the Trustee Act 1925 lets the continuing trustees appoint a replacement where a trustee refuses to act, is unfit or incapable of acting, or has remained outside the United Kingdom for more than twelve months. It is a power to replace rather than a general power to remove; the grounds are limited, and it must be exercised in writing. It does not help a CIO or a charitable company, and it is the provision that most published articles on removing a trustee reach for without saying which structures it applies to.
If your governing document is silent, or was written for an organisation you stopped being years ago, changing it is the durable fix. Doing it while a dispute is live is harder than doing it in a quiet year, which is an argument for reviewing removal provisions before you need them.
Votes of no confidence and what they cannot do
Boards reach for this, and it is worth being clear about what it achieves.
A vote of no confidence can be a legitimate step where your charity’s rules provide for one, and it can be carried out by the trustees or by the members depending on what those rules say. Where your rules do not provide for it, the vote has no legal power, and the trustee does not have to resign.
What it can do in that situation is make a position untenable, which sometimes produces the resignation the board wanted. What it cannot do is remove anyone. If your minutes record a trustee as removed by a vote your constitution does not recognise, that person is still a trustee, still carries the duties, and is still entitled to attend. Our guide to running a trustee meeting covers how contested items should be handled and recorded, and the trustees meeting minutes template gives you a record that will stand up if the decision is questioned.
Disqualification is not removal
Some people cannot act as a trustee at all. Section 178 of the Charities Act 2011 sets out who is disqualified, and disqualification operates by law rather than by anyone’s decision. The board is not choosing to remove someone. The person is already ineligible, and continuing to act is an offence.
The Commission can also disqualify someone by order under section 181A, for a period set out in the order, and that disqualification can extend to senior management positions as well as trusteeship.
Where a trustee is disqualified either way, section 79A lets the Commission remove them by order on its own initiative. Our guide to who can be a charity trustee sets out the disqualification grounds, and asking about them is part of inducting a new trustee rather than something to discover later.
What the Commission can do that you cannot
The Commission’s powers escalate, and only the first of them is one a small charity is likely to meet.
The one small charities actually meet is section 80. It lets the Commission remove a charity trustee by order on its own initiative where any of the following applies:
- within the last five years the trustee has been discharged from bankruptcy, discharged in respect of a composition or arrangement with creditors or a trust deed granted for them, or discharged from all qualifying debts under a debt relief order
- the trustee is a corporation in liquidation
- the trustee is incapable of acting because of mental disorder within the meaning of the Mental Health Act 1983
- the trustee has not acted, and will not make a declaration of willingness or unwillingness to act
- the trustee is outside England and Wales or cannot be found, or does not act, and that absence or failure to act impedes the proper administration of the charity
Those last two are the disengaged trustee, and they are the answer to the question the board in the opening paragraph is asking. The route exists. It runs through the Commission rather than through your board, and the test is not simply that the person is unhelpful; their absence or inaction has to be impeding the charity’s proper administration.
Section 80 also lets the Commission appoint a trustee, including where there are none, or where vacancies or incapacity mean the charity cannot make the appointment itself.
The serious end is section 79, and it is not available casually. The Commission must first have instituted an inquiry under section 46, and must be satisfied both that there has been misconduct or mismanagement and that action is needed to protect the charity’s property. It may then remove any trustee, officer, agent or employee who was responsible for the misconduct or mismanagement, who knew of it and failed to take any reasonable step to oppose it, or whose conduct contributed to or facilitated it.
Two features of section 79 are worth knowing. Where the Commission has given notice of its intention to remove someone, it may make the order even though that person has already ceased to hold the office; resigning part-way through does not end the matter, and the removal still counts for disqualification purposes. And where an order is made, section 81 lets the Commission deal with vesting or transferring charity property held by the person removed.
Before exercising any of these powers, section 82 requires the Commission to give notice of its intention to each of the charity trustees, except any who cannot be found or have no known address in the United Kingdom.
Most boards discover the rules after they have already acted.
A trustee voted off under a power the constitution does not contain, a resignation accepted that took the board below quorum, a register left un-updated for a year; each is fixable, and each is harder to fix the longer it sits. A free clarity call will tell you where you actually stand and what to put right first.
Membership charities and the half-finished removal
If your charity has members as well as trustees, removing someone as a trustee does not remove them as a member. They may still be entitled to attend general meetings, to vote, and in some constitutions to stand for election again.
Only the Commission can close that off, and only alongside its other powers. Under section 83, where it suspends someone who is also a member, it may suspend their membership for the same period, and where it removes someone under section 79 it may terminate their membership and prohibit them from resuming it without consent. If they apply for that consent five years or more after the order, the Commission must grant it unless satisfied that special circumstances justify refusal.
For a board removing a trustee under its own constitution, the practical point is simpler. Check what your governing document says about membership, because the two are separate questions and only one of them may have been answered.
Closing the loop
However the departure happened, the same list follows. Update the register through My Charity Commission Account. Tell Companies House if you are a charitable company. Change the bank mandate. Deal with title deeds where land is held in trustees’ names. Correct your website, your headed paper and anywhere else the trustee is listed. Follow your equality, diversity and inclusion policy through the process, as you would with any decision about an individual.
Then look at what the departure leaves behind. A board that has lost a trustee and is now close to its quorum has a live governance risk that belongs on the risk register rather than in someone’s head. If the leaver held a specific responsibility, work out where it now sits – what the board delegates and what it keeps is the document that should answer that, and quarterly financial oversight is where a departed treasurer’s absence shows up first.
And if the same conversation is happening every couple of years, the problem is unlikely to be the individuals. Boards that lose trustees repeatedly usually have something wrong upstream in how people are recruited, inducted and supported.
Removal provisions are best reviewed in a quiet year.
Checking what your governing document actually says about removal, terms of office and quorum, and fixing it where it no longer fits, is straightforward work when nothing is happening and difficult work when something is. Our ongoing support plans cover that kind of review alongside the rest of the governance year.
This article is general information for trustees of charities in England and Wales, not advice on your charity’s situation. Removal is contested territory. A removal carried out without the power to do it, or without following the procedure in your governing document, can be challenged, and the consequences fall on the trustees who made the decision. Where a trustee disputes their removal, where money or property is involved, or where you are unsure whether the power exists, take legal advice before acting rather than afterwards.
